Influencers by Launchmetrics Software - Brand (Advertiser) Terms & Conditions
Effective Date: May 14, 2018
Brands (Advertisers)—and potential Advertisers: Welcome to Influencers by Launchmetrics (“Service”)—a service of Style Coalition LLC, a subsidiary of Fashion GPS, Inc. DBA Launchmetrics (“Service Provider”). Please read the following terms and conditions (these “Advertiser Terms” or “Terms”) carefully.
Terms Incorporated by Reference
Certain other terms, conditions and policies govern the general access and use of the Site (and/or portions thereof), including Site’s general terms and conditions and privacy policies, all as may be amended from time to time. Those terms, conditions and policies (the “Incorporated Terms”), which may now or in the future be found on the Site’s homepage, are incorporated by reference and shall be deemed part of these Terms.
Modification of Terms
These Terms (including the Incorporated Terms), or any part thereof, may be amended by Service Provider, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Please check these Terms periodically for changes. Your continued access and/or use of the Service, and/or submission of any request for a Campaign (as defined below) following the effective date of any such amendment, shall be deemed to constitute acceptance by you of such modifications, additions or deletions.
Modification of Website
Service Provider may change or discontinue any aspect, service or feature of the Site at any time, including, but not limited to, content, availability, and equipment needed for access or use.
Please visit our current Advertiser User Policy, which contains important information about our practices in collecting, storing and disclosing your personal information and upcoming changes to EU data privacy laws.
Your Service Application and Profile
To become an Advertiser, you must submit an online application for evaluation by the Service Provider. Service Provider may accept or reject an application in its sole discretion. By submitting an application, you represent that any information you provide in connection with your application shall be true, accurate, current and complete; and that you are the owner and/or authorized representative of the person or entity (i.e., the Advertiser) which you claim in your application.
If Service Provider approves your account, you will have the ability to create and maintain an account (your “Account”), inclusive of your profile (your “Profile”). You agree to keep your Account and Profile true, accurate, current and complete at all times. You are responsible for maintaining the confidentiality of your Account credentials, for restricting access to your computer, mobile device or other means of accessing your Account, and for all activities that occur under your Account. You must notify Service Provider immediately of any unauthorized access or use of your Account.
By logging into your Account, you will have the ability to, amongst other things, search the full profiles of members of the Influencer Network participating in Service (“Influencers”); create and submit campaigns utilizing Influencer’s services (each, a “Campaign”) for consideration; review Campaign content and reports. Your Profile and other Account details will not be visible to others, including Influencers and other Advertisers. Of course, certain general information may be disclosed to Influencers whose services you request in connection with a Campaign and/or engage for a Campaign.
Your Account is a limited, non-exclusive license to use the Service. Service Provider reserves the right to: monitor and review your Account, your Profile, and your activities in connection with Service and the Site for compliance with these Terms; to refuse service, terminate, deactivate or suspend access to your Account, Service and/or the Site, in whole or part, at any time in its sole discretion (with or without cause, including but not limited to any violation of these Terms); and/or offer certain portions, features or functionality of Service and/or the Site, or make certain offers, to a select group of Advertisers or other users of the Site.
You may request that Service Provider deactivate your Account at any time by following the procedures on the Site or by contacting Service Provider. However, your Account shall remain active so long as there are any pending transactions associated with your Account. Service Provider shall retain the right to maintain your Account and Profile information for archival and recordkeeping purposes for a period of three (3) years, and for use in accordance with the licenses granted in these Terms. Such time period will not apply if you have requested that your data be deleted within three (3) years of deactivation.
Submission of Campaigns
Once your Account and Profile are active, you will have the ability to create and submit Campaigns. Influencer’s approval or disapproval of a Campaign will take place through the Site.
The Site may contain comments sections, or other interactive features (“Interactive Areas”) in which you may post or upload information, comments, content or materials created or provided by you in connection with any Campaign (“Custom Content”). You are solely responsible for your use of any Interactive Areas and you use them at your own risk. Interactive Areas are available for individuals aged 13 years or older.
By submitting any Custom Content or participating in an Interactive Area within or in connection with the Site, you agree that you will not upload, post or otherwise transmit any Custom Content that (a) violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others; (b) you know to be false, misleading or inaccurate; (c) contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity; (d) contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd; (e) violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them; (f) advocates violent behavior; (g) poses a reasonable threat to personal or public safety; (h) contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitative, prurient, or gratuitous purposes; (i) is protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity or other proprietary right. The burden of determining that any Custom Content is not protected by copyright, trademark, trade secret, right of publicity or other proprietary right rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from such a submission.
Execution of Campaigns
At any point of the Campaign, Service Provider may assign a project manager to assist in the facilitation of the execution of Campaigns between Influencers and Advertisers. You agree to furnish your full cooperation to Service Provider, and if requested, to the Influencer, in order to execute the Campaign.
You agree that neither you, nor your agents, shall directly contact or attempt to contact Influencers in connection with a Campaign for the purpose of changing Campaign Terms agreed upon through the Site.
Compensation and Payment
Influencers will have the full discretion to set their rates for their Campaign service fees. The prices quoted to you, as Advertiser, will be the gross Campaign fee, inclusive of Service Provider’s compensation. Service Provider will facilitate the billing of Advertisers and payment to Influencers for Campaigns accepted and fulfilled. Unless otherwise indicated, all Campaign fees are quoted in U.S. dollars. You understand that each Influencer will have the right to accept or reject a request for a Campaign in their sole discretion. Assuming an Influencer accepts a Campaign, the prices quoted are not guaranteed until you receive a confirmation e-mail from Service Provider.
You agree to pay Campaign fees fully and promptly. Unless otherwise agreed to by Service Provider in writing, you shall pay fifty (50%) percent of the Campaign fees upon confirmation of the Campaign, and fifty (50%) percent when the last element to be furnished under the Campaign is published; except that for Campaigns scheduled to span more than forty-five (45) days, you shall pay fifty (50%) percent upon confirmation, twenty-five (25%) percent when the first element to be furnished under the Campaign is published, and twenty-five (25%) percent when the last element is published.
You shall be entitled to review drafts of Campaign elements before they are published. After the first draft has been submitted, you may request reasonable changes, after which a second draft will be submitted. If you request further drafts, a twenty-five (25%) percent fee (based on the quoted price of that particular element of the Campaign) shall be charged for the third (and each subsequent) draft.
If you cancel a Campaign (or portion of a Campaign) after your acceptance but before the Influencer commences work on the Campaign, you will not be charged for that Campaign (or applicable portion), but shall be responsible and shall reimburse the Influencer and/or Service Provider for any of their verifiable out-of-pocket costs and expenses (excluding general overhead) incurred in connection with the Campaign or preparation for the Campaign. If you cancel a Campaign (or portion) after your acceptance, after the Influencer(s) have submitted drafts for review, but before the applicable elements are made public, you shall be responsible for and shall pay twenty-five percent (25%) of the fees for that Campaign (or applicable portion).
Responsibility for Influencer Execution; Disclaimer
You expressly acknowledge that Service Provider is solely acting as a facilitator between you and Influencers with whom you engage for Campaigns or other Service transactions. While Service Provider shall use commercially reasonable efforts to ensure that Influencers fulfill their obligations, you agree that in the event of any breach of an Influencer’s obligations, or other damages caused or allegedly caused by an Influencer’s act or omission arising out of or related to a Campaign, your remedy shall be against the Influencer alone, and you hereby agree to hold Service Provider (and its parent companies, subsidiaries, affiliates, partners, suppliers and service providers, and the directors, officers, employees and agents of each) (individually and collectively, Service Provider’s “Affiliates”) harmless from any of the foregoing.
FURTHER, EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SERVICES AND ALL INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE”, AND YOU ACKNOWLEDGE THAT SERVICE PROVIDER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ANALYTICS, DATA, METRICS, REPORTING, OR THE LIKE PROVIDED BY INFLUENCERS IN CONNECTION WITH A CAMPAIGN; AND AS SUCH, YOU LIKEWISE AGREE TO HOLD SERVICE PROVIDER, SERVICE PROVIDER’S AFFILIATES, SERVICE PROVIDER’s FUTURE PARENT OR FUTURE AFFILIATED COMPANIES, HARMLESS IN RELATION TO ANY OF THE FOREGOING.
LIMITATION OF LIABILITY
TO THE GREATEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER OR SERVICE PROVIDER’S AFFILIATES OR ITS FUTURE PARENT OR FUTURE AFFILIATED COMPANIES BE LIABLE FOR ANY LOSSES OR DAMAGES TO PROPERTY, REPUTATION OR PERSON, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, ARISING DIRECTLY OR INDIRECTLY FROM THE USE OF THE SERVICE, OR ANY INFLUENCER’S SERVICES, OR ANY CAMPAIGN OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE SITE, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR REVENUES. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR OR NEGLIGENCE, UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF SERVICE PROVIDER OR SERVICE PROVIDER’S AFFILIATES OR FUTURE PARENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF THE FOREGOING AND EVEN IF THE WARRANTIES HEREUNDER ARE DEEMED TO FAIL IN THEIR ESSENTIAL PURPOSE. WITHOUT LIMITATION OF ANY OTHER PROVISION OF THESE TERMS, YOU ACKNOWLEDGE THAT IN NO EVENT SHALL, SERVICE PROVIDER OR SERVICE PROVIDER’S AFFILIATES AGGREGATE LIABILITY TO YOU ARISING OUT OF THE SERVICE, OR ANY INFLUENCER’S SERVICES OR CAMPAIGN, EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO SERVICE PROVIDER IN CONNECTION WITH SUCH CAMPAIGN. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT SERVICE PROVIDER OR SERVICE PROVIDER’S AFFILIATES OR FUTURE PARENTS ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE SITE OR ANY OTHER THIRD PARTIES.
IN NO EVENT SHALL SERVICE PROVIDER OR SERVICE PROVIDER’S AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS OR LICENSORS WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, NOR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, OR SERVICE PROVIDED THROUGH THE SITE OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS.
Confidentiality and Non-Circumvention
You further agree that you shall not, after submitting a request for an Influencer’s services for a Campaign through Service, engage or otherwise employ such Influencer in connection with that Campaign except through Service. You agree that you shall not take any action calculated or reasonably likely to circumvent the provisions and purposes of this provision.
Relationship of the Parties
The relationship between you and Service Provider established by these Terms and pursuant to the Service is that of independent contractors, and except as otherwise expressly agreed to by you and Service Provider in writing, nothing shall be construed to create an agency or employment relationship between us or constitute us as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
Your Representations and Warranties
You hereby represent and warrant that: (a) you have the full right, power and authority to agree to be bound by these Terms and perform your obligations under them, and pursuant to any Campaign which you may enter into; (b) you shall comply with all laws, rules and regulations in the course of your performance hereunder and pursuant to any Campaigns; (c) with respect to Custom Content, (i) you shall have paid in full all license fees, clearance fees, or other financial obligations of any kind arising from the creation or use of such Custom Content in connection with the Campaign, (ii) such Custom Content shall not infringe upon the rights of any third party, including but not limited to rights of copyright, trademark, patent, trade secret, privacy, publicity, moral rights or other intellectual property, proprietary or other right, and (iii) such Custom Content shall not defame or disparage any third party.
Governing Law and Jurisdiction
These Terms shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of New York excluding its choice of law principles. All matters concerning the validity and interpretation of and performance under these Terms shall be resolved before a single arbitrator experienced in the computer hardware/software and computer consulting service industries in accordance with the Rules of the American Arbitration Association using the Associations’ facility in the State of New York, County of New York and City of New York. The award of the arbitrator shall include a written explanation of his decision and be limited to remedies otherwise available under these Terms and shall be binding upon the parties and enforceable in any court of competent jurisdiction. Any provisional or equitable remedy which would be available from a court of law shall be available from the arbitrator to the parties in such proceeding. The parties hereby consent to: (i) the jurisdiction of the exclusive federal or state courts sitting or located in New York City for any action: (a) to compel arbitration, (b) prior to the appointment and confirmation of the arbitrator, for temporary, interim or provisional equitable remedies, including without limitation any injunctive or other equitable relief to protect or enforce a party’s intellectual property rights hereunder, or (c) any claims or disputes arising from or relating to either party’s Intellectual Property Rights; and (ii) service of process in any such action by registered mail, return receipt requested, or by any other means provided by law. For the avoidance of doubt, the prevailing party shall be entitled to apply to a court in any applicable jurisdiction to enforce the award or any right or remedy determined by the arbitrator, not only the federal or state courts sitting or located in New York City. In any action or suit to enforce any right or remedy under these Terms the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
You understand that your Account, your rights and obligations under these Terms and pursuant to any Campaign are personal to you, and may not be assigned or delegated, in whole or part, without Service Provider’s prior written consent (which shall not be unreasonably withheld or delayed). Any purported attempt to do so shall be of null, void and of no effect.
Licenses and Publicity
With respect to any Custom Content (in whole or in part) furnished by you in connection with a Campaign, you hereby furnish to Service Provider (and the applicable Influencer(s)) a non-exclusive, worldwide, royalty-free, perpetual license to use reproduce, edit, display, transmit, translate, publish and otherwise make use of any such Custom Content or other properties in any and all media now known or hereafter developed, for the purposes of the Campaign, without payment to you or to any third parties.
You hereby grant Service Provider the non-exclusive, irrevocable, perpetual and worldwide right to identify you as present or former Advertisers (as the case may be), and use portions of your Campaigns for purposes of marketing and advertising, including but not limited to portfolio pieces and case studies.
Additionally, you represent and warrant to us that you have the full legal right, power and authority to grant to us the license provided for herein, that you own or control the complete exhibition and other rights to the Custom Content you submitted for the purposes contemplated in this license and that neither the Custom Content nor the exercise of the rights granted herein shall violate these Terms, or infringe upon any rights, including the right of privacy or right of publicity, or constitute a libel or slander against, or violate any common law or any other right of, or cause injury to, any person or entity. You further grant to us the right, but not the obligation, to pursue at law any person or entity that violates your or our rights in the Custom Content by a breach of these Terms.
These Terms constitute the entire agreement and understanding between you and Service Provider with respect to their subject matter, and supersede all prior or contemporaneous communications, offers or agreements, whether oral or written. A printed version of these Terms shall be admissible in any judicial or administrative proceedings to the same extent as other documents and records originally generated and maintained in printed form. If any provision of these Terms is held to be unlawful, void or unenforceable, such provision shall have no effect; however, the remaining provisions shall be enforced to the maximum extent possible. Further, if it should be held that any portion of these Terms are overbroad or unreasonable, such portion shall be given effect to the maximum extent possible by narrowing or enforcing in part that portion found overbroad or unreasonable. Any provision of these Terms that imposes or contemplates continuing obligations on a party shall survive the expiration, termination or amendment of these Terms. Service Provider’s failure or declination to enforce these Terms, or any portion of them, in any instance, shall not operate as a waiver thereof in that instance or any other. All of Service Provider’s rights and remedies hereunder shall be cumulative.
Should any term of these Terms be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
Service Provider Contact Information
You may contact Service Provider by e-mailing us at: email@example.com.